Grantham v. Gossett
| Decision Date | 20 June 1904 |
| Citation | 81 S.W. 895,182 Mo. 651 |
| Parties | GRANTHAM v. GOSSETT et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. E. P. Gates, Judge.
Reversed and remanded (with directions).
Jas. F Mister for appellants.
(1) There is no satisfactory proof (nor indeed any proof), either of a contract "to adopt" (or of an actual adoption), or of a contract "to give a child share in estate." Neither the "family" witnesses or the corroborative witnesses (if they may be so called or designated), make up, either separately or in combination, a coherent, consecutive, probable story. They contradict each other and are self-contradictory, and are all, and each of them, upon all the canons of evidence, unworthy of belief. It is utterly impossible, upon either of them, or of all of them together, to construct a foundation for the basis of any decree which the law authorizes to be rendered; or for the granting of relief as of a meritorious cause of action. This sufficiently appears from a short analysis of the stories respectively, of the witnesses, along with the contradictory and corroborating evidence of other witnesses, in the order of their introduction at the trial. (2) Neither is there anything in this case which entitles plaintiff to the relief asked, or any relief, because of not coming within the purview of facts within which such relief can be granted; the socalled agreements testified to by Ed Triplett and others being treated as unworthy of belief of themselves (as expressly stated by the trial judge in rendering the decree in this case), and the claim resting altogether upon the admission by Wilson in the conversation with Whitmore as reported by him in his deposition; he does not claim that Wilson gave him the "terms of the agreement," but expressly states that he did not.
C. O Tichenor also for appellants.
(1) The proof of the contract must be so cogent, clear and forcible as to leave no doubt in the mind of the chancellor as to its terms and character. There must be like proof that the acts done unmistakably refer to and result from that contract. There must be no equivocation or uncertainty in the case. It must be in terms a contract, and not a mere declaration of intention or expectation. In fine, there must be a contract definitely and conclusively proven. Casual and loose conversations, when not supported by other evidence, are entitled to little, if any, weight. This is dangerous testimony; is looked upon with jealously and should be weighed in the most scrupulous manner. Agreements of this kind are looked upon with suspicion and ought not to be encouraged. These agreements are within the statute of frauds and are sustained only where it would work a fraud if one party was allowed to plead it. Goodwin v. Goodwin, 172 Mo. 48; McElvain v. McElvain, 171 Mo. 257; Kinney v. Murray, 170 Mo. 700; Steele v. Steele, 161 Mo. 575; Curd v. Brown, 148 Mo. 92; Fanning v. Doan, 139 Mo. 411; Nunacky v. Berger, 133 Mo. 42; Teats v. Flanders, 118 Mo. 669; Cherbonier v. Cherbonier, 108 Mo. 264; Emmil v. Hayes, 102 Mo. 195; Veth v. Gierth, 92 Mo. 104; Reed v. Morgan, 73 S.W. 381; Drake v. Lanning, 49 N.J.Eq. 459; McTague v. Finnegan, 54 N.J.Eq. 457; Woods v. Evans, 113 Ill. 191; Neals v. Gilmore, 79 Pa. 425; Miller's Estate, 136 Pa. 249; 8 Am. and Eng. Ency. Law (2 Ed.), 1017; Nickerson v. Nickerson, 127 U.S. 676; Purcell v. Miner, 4 Wall. 517; Williams v. Morris, 95 U.S. 444; Maddison v. Alderson, L. R. 8 App. Cases 467. (2) In order to sustain such a contract there must be something for a consideration, which is "incapable of computation by any pecuniary standard." In this kind of contract for consideration there is a surrendering by a father or mother of the child and its influences; the transferring of its affections; the sundering of the closest of ties; the affectionate services and care where people are aged; the impossibility of restoring a party to his former condition; the value of all which can not be measured by dollars and cents. Healy v. Simpson, 113 Mo. 347; Gupton v. Gupton, 47 Mo. 45. (3) What the Wilsons did for this child resulted from charity and not from contract. Shehan v. Swan, 48 Ohio St. 39.
Milton & Goodwin, W. L. Stocking, W. C. Culberson, Wm. H. Wallace and T. B. Wallace for respondent.
(1) There is but one question in this case and that is whether the alleged contract is proved. There can not be any controversy as to the law of the case. The principles governing this class of cases are well established in this court. The law does not change every five minutes, and the later decisions of this court, some of which are referred to by the appellant, have not changed the law. If the contract is established to the satisfaction of the court, the plaintiff is entitled to the decree, and that is all there is to the case. Performance on the part of the plaintiff and of her father is so well established that nothing further need be said about it. That Wilson had such benefits and advantages as grew out of the relation established between himself and the child, and that Triplett relinquished his right as a parent, is not disputed by anybody. That Wilson himself performed the contract to the extent of treating the plaintiff as his daughter and holding her out to the world as such, is admitted by appellant's counsel in the briefs. Nor is it disputed that the plaintiff did her part as a daughter to Mr. Wilson. In addition to the performance of household duties, she was obedient and affectionate, she gave him those little attentions which are expected from children by parents in the household, and for many years she was the only companion these old people had, remaining with them after their own children had gone away, and until her marriage which took place under their sanction. Admitting the contract the plaintiff is entitled to the relief. Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Sharkey v McDermott, 91 Mo. 647; Healy v. Simpson, 113 Mo. 340; Norweck v. Berger, 133 Mo. 24; Lynn v. Hockaday, 162 Mo. 111; Wright v. Wright, 99 Mich. 170; Van Dine v. Vreeland, 11 N.J.Eq. 370; Van Dine v. Vreeland, 12 N.J.Eq. 140. (2) The agreement sued on is abundantly established by the evidence. It was made in the presence of the plaintiff, Mr. Wilson, and Ed Triplett at the Wilson home, when Triplett came for his daughter after having made several prior efforts to get her which were unsuccessful. It was repeated in the presence of Solomon Jones at Wilson's gate, and it was again repeated in the presence of William M. Jones, the Methodist minister. It said that the testimony of these witnesses to an event which took place so long ago is weak, but they testify to the event clearly. Two of these witnesses at this time were ten or twelve years of age, and the other a young man. That they were young at the time is no reason why they should not remember the event. All of us can recollect clearly many events which took place when we were only two or three years of age. These witnesses were old enough to understand the nature of the transaction. And who would ever forget such a transaction as that -- i.e., the giving away by a parent of his child? It is true that these witnesses do not remember other things which occurred about the same time. But they were unimportant circumstances which were not calculated to impress themselves on the mind. But the fact of the contract does not rest upon the testimony of these three witnesses alone. It was admitted by Wilson to the butcher, John Hoag, who first had the child, and in the presence of John G. Thompson who was a real estate owner and man of standing in the community. The assertion that "Thompson came to the State to have his deposition taken" is untrue. He lived at the time in Shawnee, Kansas, and was summoned to appear in Kansas City, Kansas, and on the day the deposition was to be taken the place was by agreement changed to Kansas City, Missouri, and he voluntarily came over without a subpoena. The fact of the agreement together with all the surrounding circumstances, was voluntarily stated by Wilson to Mr. Whitmore, manager of the Baltimore Hotel, during the same year in which Mr. Wilson died, and while Mr. Whitmore says that Wilson did not undertake to specify the terms of the agreement, the agreement as stated by Wilson to Whitmore contained all the terms there were to the agreement as testified to by the other witnesses, and all the terms necessary to the enforcement of the contract in a court of equity. There is no escape from the testimony of this witness. He was a man of position and respectability, being manager of the Baltimore Hotel and vice president of the Hotel Company. He was disinterested. The contract had not been broken at this time. The breach did not occur until Wilson's death. The plaintiff had no reason to apprehend that it would be broken. Mr. Gossett, the administrator of Wilson's estate, testified to having a short conversation with Whitmore as to what Wilson said on the accasion referred to. Gosset does not contradict Whitmore, but said that as he recollected the conversation Whitmore testified to the statements of Wilson more fully in his evidence than he gave them to him in the short talk he had with him. The agreement is further confirmed by the acts of Wilson during a period of seventeen years in holding the plaintiff out to the world as his daughter, introducing her as such, stating that she was his adopted daughter, changing her name; and is also confirmed by the daily life of these parties for the same length of time. These acts are consistent with the fact that she was taken into the family as a daughter and inconsistent with the theory of the defendant that she was taken as an...
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